By section 16 of a codicil of even date with the will, it is provided as follows: "My executors are hereby enjoined to distribute or pay no part of my estate in fulfilment of my will, except to pay legacies of less amounts than $5000; and except, also, the payments necessary to continue those annual payments which I have for some years made by agreement with certain institutions, in the interval before getting the principal of their legacies, until the whole of the hundred acres more or less shall have been put under cranberry culture." The lands have been put in cranberry cultivation, but thus far have not realized the testator's expectations as to profits. The will contains the provision already referred to (section 52):"Should my estate prove deficient to pay all the legacies, then the pecuniary legacies will abate ratably.” stitution, in which he had always taken the greatest interest. In 1835 he was elected Professor of Materia Medica, which position he held until 1850, when he took the chair vacated by Dr. Chapman as Professor of Practice, which he filled until 1860, when he was elected Emeritus Professor. He continued to be a trustee until the date of his death, March 30th, 1879, being then in his eighty-third year, having thus spent forty-four years of his life in the service of the University, of which also he was a graduate. In January, 1865, Dr. Wood wrote a communication to the Board of Trustees of the University of Pennsylvania, in which he made a proposition to appropiate out of his income the annual sum of $2000 (which by a subsequent letter he Owing to the fall of real estate, of which the raised to the sum of $2500) to be applied by the testator's property consisted to a considerable Board of Trustees to the support of an auxiliary extent, the estate has, as before mentioned, faculty of professors in the medical department. turned out insufficient to pay all the pecuniary The proposition contained however this condi legacies, and it is estimated at the present time that it will pay between sixty and seventy-five per cent. of them. The question now presented is whether, under the provisions of paragraphs 27 and 30, the gifts there made to the University are subject to abatement. tion :— "Though his income at present is such as to justify him in making this appropriation, and he can see no reasonable ground to apprehend that it might be so far diminished as to render the appropriation at any time in the future inconvenient, yet, in the uncertainty of affairs, it may happen that this sum may be necessary to supply his ordinary expenditures, and he therefore feels it incumbent on him to make the appropriation conditional on his future It is conceded that the legacy of $5000 given ability to maintain it without material personal inconveby section 29 and that of $75,000 given by sec-nience; he pledges himself, however, that should the tion 31, are subject to abatement; but it is con- Board so far honor him as to accept his proposition, no tended that the legacy of $50,000 being in dis- trifling cause shall be permitted to interfere with its due charge of an obligation is not; while on the fulfilment on his part." other hand it is claimed that the provision for abatement contained in section 52 of the will applies to this bequest, and also to the annual payment of $2500 provided by section 30. tator. The proposition thus made was accepted by the trustees, and the auxiliary faculty was instituted accordingly. It comprised five professors, each of whom was to receive $500 per annum, to be paid at the end of the course upon certificate of the Dean that the duty had been properly performed. The last provision in the plan proposed by the committee and adopted by the Trustees was as follows: The question is a difficult one. As a general rule, in the event of deficiency of assets all pecuniary legacies abate pro rata, and this is in accordance with the express direction of the tesIt is also well settled that for the purposes of abatement, annuities are to be treated as general pecuniary legacies. (Theobald, page "The professors shall be appointed for one 459; Williams on Executors.) This rule it is year after public notice of at least three months, said, however, "is to be understood only as at the regular meeting of the board in Novemamong legatees who are all volunteers, for if ber next, nominations having been made at a there be any valuable consideration for the testa- preceding meeting, and shall be reappointed anmentary gift, as where it is given in considera-nually thereafter during satisfactory service, at tion of a debt owing to the legatee, such legacy will be entitled to a preference of payment over the other general legacies which are mere bounties." (Williams on Executors, 1176; Theobald, page 459; Blower v. Morrett, 2 Ves., Sen., 420; Heath v. Dendy, 1 Russ. 543; Norcott v. Gordon, 14 Sim. 258, etc. etc,) The first point to be considered therefore is, Was there an obligation on the part of Dr. Wood to the University which could have been enforced against his estate? As is well known, he had for many years been connected with the in the regular meetings of the board in the same month, so long as the plan for the establishment of the auxiliary faculty of medicine now adopted shall continue in operation." The plan thus started has continued in operation ever since. Dr. Wood while he lived always paid the stipulated sum of $2500 per annum, after receiving the certificate that the lectures had been delivered, the whole of which was applied to the payment of salaries. There appear to have been no other expenses attending the enterprise than the salaries. The rooms already belonging to the University were used, and no buildings were therefore required. It was shown, however, that all of the income of the University was so appropriated, that but for the aid to be furnished by Dr. Wood, the auxiliary faculty could not have been created; and that it was created solely in consequence of the propositions contained in the coinmunications of January 31 and April 4, 1865. It must be admitted that these acts of the trustees, based upon Dr. Wood's promise to pay an annual sum, furnish a consideration which would give a binding effect to such promise. It may also be conceded that while he lived the promise was obligatory, subject only to the condition of his ability to pay. A promise to pay when able is undoubtedly valid. (Addison on Contracts, page 1212; Groome's Appeal, Legal Intelligencer, 1878, page 70; Waters v. Earl of Thanet, 2 Queen's Bench, 757.) It is different, of course, where the ability to pay is by the terms of the contract made dependent upon the judgment of the debtor, as in Nelson v. Von Bonnhorst (5 Casey, 352). But what is there to continue the liability beyond the period of Dr. Wood's lifetime? It is not denied that a contract to pay a perpetual annuity is possible. In such a case, however, appropriate words should be used, and the Court must be convinced that such was the intention of the parties. In Quain's Appeal (10 Harris, 510), where it was held that the general estate of a covenantor in a ground-rent deed was not liable for rents accruing after his death, it was said :— This case, so far as it applies to a contract under seal, in which the covenantor in express terms agrees for himself, his executors and administrators, to pay an annual sum forever, has been much criticized, though it has been affirmed in the subsequent case of Williams's Appeal (11 Wright, page 283). But where the terms of the contract are not express, and where we are seeking for the intention of the instrument, the inconveniences there pointed out have great weight, and perhaps furnish a conclusive argument against the construction which would make the contract a perpetual one, and make the office of executor everlasting. Not only are there no words here showing an intention to bind the estate of the promissor after his death, but the agreement is to pay out of "his income," and this is made subject to the condition that he is not thereby to be put to inconvenience. At his death his income ceases. What is there to require payment from any other source? That this was the limit of his liability is indicated further by the provision in the plan adopted by the committee with regard to the appointment of professors. For while the ordinary profesors at the University are, as was testified by the Secretary of the Board of Trustees, elected for an indefinite term, the auxiliary faculty are appointed annually, and only so long as the plan for the establishment of the auxiliary faculty of medicine shall continue in operation. The plan is referred to in the letter of the 4th of April, 1865, and is to be read in connection with it, in order to ascertain the extent of the liability which was then created. In the opinion of the Auditing Judge no right of recovery, apart from the provisions in the will, existed in the University at Dr. Wood's If this view be correct, then the provisions referred to in the will, not being in discharge of an obligation, would fall under the general principle, and be subject to abatement with other pecuniary legacies. There is nothing in the will which shows that the testator considered himself bound to pay for a longer period than his own lifetime. "It is a perpetual covenant, and it is totally impracticable to require it to be performed by executors and administrators; for their office is not perpetual. If we retain the perpetuity of the covenants as against them, even with the restric-death. tion that they are to be liable only where the resort to the land is ineffectual, we still prevent all distribution in their hands; and as all the lands of the decedent are assets for the payment of debts, we constructively charge the rent of a single lot upon all his lands. Nor will it do to hold them liable until the final settlement of the estate. If that suggestion means until all other matters are ready to be settled, then it takes away at once the character of perpetuity belonging to the covenant, and makes its duration as against the personal estate to depend upon the accident of the administrator's diligence, or of the involved or simple nature of the estate. If it means until the final settlement of the whole estate, then this perpetual covenant postpones it forever. This cannot be, for the law intends the office of executor or administrator to terminate as soon as possible; it cannot be prolonged on account of perpetual covenants." In section 27 he speaks of having aided by an annual payment, and of his desire that the faculty should be permanently established. In section 30 he says that he had heretofore "engaged to pay,' but he adds, "and paid," as if he regarded his engagement as completed. So in section 16 of the codicil he speaks of the annual payments which he had made for some years "by agreement." This is all; and it is entirely consistent with an agreement to pay so long as he lived, and no longer. If section 30 were read by itself, it might be supposed the testator intended that under all circumstances, and in spite of any deficiency of his estate, the sum of $2500 was to be paid to the University until so much of the sum mentioned in section 27 was paid as would yield an income of that amount. But this section is to be read in connection with the codicil, which was executed the same day, and which provided (section 16) that no legacy over $5000 should be paid until the lands in New Jersey were placed in cranberry culture. This might be for some years to come, and in the mean time, therefore, he gives to the University an annuity not exceeding $2500, the payment of which is to continue until the legacy of $50,000 is paid, viz., until the land had been put under cranberry cul Exceptions were filed by the Trustees of the University of Pennsylvania to this adjudication : (1) To the finding that there was not sufficient evidence of a valid contract made by the testator in his lifetime, requiring the continuance after his the maintenance of the auxiliary faculty. (2) death of the payment of $2500 per annum, for To the holding that the exceptants were not on the footing of creditors, as respects the fund of $50,000, but only as unpreferred legatees or volunteers, and that the said legacy should abate. (3) To the holding that the legacy of $7500 to Mrs. Hannah Chamberlin did not lapse by reason that she pre-deceased the testator. George R. Wood also filed an exception to the disallowance of his claim, by which he is excluded from all benefit under any provision in the will of the testator. El K. Price and J. B. Townsend, for the exceptions of the Trustees of the University of Pennsylvania. was sufficient. Subscriptions for corporate or public purposes are enforceable in law as founded on adequate considerations. Cunningham v. Garvin, 10 Barr, 366. Debts, though voluntary, are to be paid before legacies. 2 Williams on Exec'rs, 914, 1207. There are no expressions in the contract, as The fact that the contract was intended to continue for its fulfilment beyond the life of the testator, is further confirmed by the testator's declaration in his will, that the annual payment should not fail of being furnished, whether it there should be delay in the payment over of came from income or principal of his estate, if the legacy which he designated to form the fund for producing such annual payment. (2) The second exception raises the question whether there has not been enough shown to impress upon the testator's estate a trust as to so much as will furnish the expenses of this auxiliary tees liable to abatement. faculty, or at least give a preference to the claims of the exceptants over those of the lega Where the testator's acts during lifetime, or Richardson v. Richardson, 3 Law R. Eq. 686. When Dr. Wood put at the disposal of the trustees enough of his income to defray these expenses, he charged his estate with the execution of this trust. He does not call this yearly sum a legacy, but recognizes it as a payment to be kept As to the first exception. The testator made up under his engagement. And it is to be kept a contract with the exceptants to pay the ex-up until the fund of $50,000 in its entirety shall penses of the auxiliary faculty, not exceeding have passed to the University, so as to furnish $2500 per annum, which became binding on therefrom sufficient income to relieve his estate him and his estate. There was no limit as to time, the only condition was as to his personal expenses; after his death this limitation, of course, ceases, and the contract is unconditional. On the faith of this promise the auxiliary faculty was organized, the public was notified of the enlargement, and liabilities incurred by the University under the contracts with the professors. The consideration to establish a valid contract from his engagement. And because of the character of this engagement neither the yearly sum nor the capital fund of $50,000 would be liable to collateral inheritance tax. There is no rule of law to restrict the testator from contracting to found in perpetuity; this is for the cause of science and learning, and the public interest intervenes to protect such endowments as charities. As to the third exception. The legacy of which they could sue, is abundantly established $7500 to Mrs. Chamberlin lapsed upon her death by the authorities in Pennsylvania. prior to that of the testator, and thereby fell into the residue. Woolmer's Est., 3 Whart. 477. Loxley's Est., 6 WEEKLY NOTES, 529. To prevent lapse, the giving over of the legacy must be to some other party as purchaser, a new taker by direct gift from the testator, not claiming in a representative capacity through the first legatee dying in the testator's lifetime. A legacy is not saved from lapse because given to the legatee or to his executors, heirs, or legal representatives. Williams on Exec'rs, 1085, 1013. I Williams on Exec'rs, 1086. Nelson v. Von Bonnhorst, 5 Cas. 352. The legacy of $50,000 given by item 27 is obviously a pecuniary legacy. And by paragraph 52 the testator says: "Should my estate prove deficient to pay all legacies, then the pecuniary legacies will abate ratably." So that the $50,000 must abate ratably with the other legacies. The annuity of $2500 a year, bequeathed by paragraph 30 of the will, until the legacy of $50,000 should be paid, is a pecuniary legacy, and therefore abates ratably with the other legacies. There is no intent shown in the will that the Trustees of the University are to be preferred to George W. Thorn, for Mrs. Chamberlin's rep- the other objects of his bounty, many of whom resentatives, cited Bridge v. Abbot, 3 Brown C. Rep. 225. Bridges v. Wood, 2 Vern. 378, note. are near relations of Dr. Wood. The annuity in question, given temporarily, and which is to be without deduction from the principal legacy, is merely an added legacy which testator intended should be subject to the same incidents and conditions as the legacy primarily given, one of which was that it should abate equally in case of deficiency. Jos. M. Pile, for exception of Geo. R. Wood. The words of exclusion used in the codicil are not sufficiently comprehensive to bar George R. Wood from coming in as one of a class, as one of twenty-two nephews. Butler's App., 23 Sm. 452. the adjudication. The several The exceptions are therefore dismissed, and the adjudication confirmed. Opinion by HANNA, P. J. R. Francis Wood, George Biddle, and George 'W. Biddle, for executors of Dr. G. B. Wood. There is no evidence of any contract made by the testator in his lifetime binding himself to pay any sum to the Trustees of the University. Possibly some of the expressions used in the will July 3, 1880. THE COURT. might, under other circumstances, as declarations made by the testator, constitute some evidence; questions raised by the exceptions have been but here the whole transaction in question is elaborately and carefully considered by the Aushown by the correspondence between the tes-ments of counsel, we are unable to reach any shown by the correspondence between the tes-diting Judge, and notwithstanding the able argutator and the Board of Trustees. It is apparent other conclusion than that so well set forth in from this that no contract was made or existed; on the contrary, the testator's letter to the trustees, making the gift, shows that he took pains to exclude such a conclusion; being made "conditionally on his future ability to maintain it without material personal inconvenience." Therefore, whatever steps the trustees took in consequence of the gift, they acted with express notice of the condition annexed to the offer by Dr. Wood. The testator could have discontinued the gift at any time he thought proper. This did not constitute a contract, or give rise to a debt. The only consideration for it would be any inconvenience suffered by the University in consequence of the gift. Without this it would be a mere nude pact. But even could such inconvenience be shown to exist, he made the gift on express condition that he might discontinue it when he chose. That Dr. Wood's letter to the Trustees did not constitute a binding contract on his part, nor raise a debt for the recovery of U. S. Circuit Court- Oct. 26, 1880. Reading v. Texas and Pacific Railway Co. Practice-New trial-Verdict for plaintiff-Inadequacy-Verdict not set aside for, at instance of plaintiff where the Court would have sus tained a verdict for defendant-Contract-Evidence. Eo die. THE COURT. The plaintiff here has circumscribed his case within very narrow limits. Motion for new trial. The plaintiff declared He has by his declaration bound himself to prove in assumpsit and after setting forth an agreement a promise between himself and the defendants by the defendants to pay him $10,000 for ob- by which the latter agreed, in consideration of taining the consent and agreement of all the whatever he did in the performance of his conbondholders of the Shreveport and Texas Rail-tract, to pay him the balance he now claims. way Company, to a scheme for reorganizing that He has been permitted to present his case to the company and coming into a new organization, jury in a double aspect. First, that his performand performance thereof, then averred, inter ance of his contract to obtain the signature of alia, at follows:these parties to a paper to provide for the reorganization of this railroad, was acceptable to the defendants, and that so he was entitled to recover; and secondly, on the ground that no matter how he performed his contract, these matters were subsequently arranged between the parties and a promise had been made to pay the ascertained balance of $6000. As to the above grounds I was unable on the trial to see how the jury could find for the plaintiff. As to the first ground the plaintiff was permitted to go into that, although under his declaration this was perhaps mere matter of inducement. He was permitted however to show, if he could, performance of the contract. Now, it must be admitted that there was no actual performance of the contract proven. Taking all the evidence, I think the weight of it was against the plaintiff and I so presented it to the jury. "That afterwards, to wit, etc., said defendants knew that the plaintiff had performed his undertaking and promise as aforesaid and were content and satisfied therewith and at divers times thereafter, upon being requested by plaintiff, the said defendants paid to plaintiff on account thereof, divers sums of money, amounting to four thousand dollars, acknowledging a balance of six thousand dollars to be still owing by defendants in consideration of the premises." The defendants pleaded non-assumpsit, etc. On the trial the plaintiff failed to show full performance on his part of the original contract, but testified that the defendants had waived a literal performance and had paid him $4000 on account and agreed to pay the whole balance. This testimony was contradicted by a number of witnesses for defendants, who testified that no such waiver had taken place, and that the money actually paid was, part of it, to enable the plaintiff to commence operations, and part of it as a mere gratuity for his unsuccessful efforts to perform the contract. The jury found a verdict for the plaintiff for $1000, whereupon the plaintiff moved for a new trial. On the second point, as to a subsequent arrangement between the parties, the testimony of the plaintiff was not direct; he did not swear that there was an actual ascertainment of this balance. He merely says, he understood it so. He does not testify to any unqualified promise. Under these circumstances a verdict in favor of the defendants would have been satisfactory to the Court. Now, the jury erroneously have found a verdict for a sum less than the plaintiff would have been entitled to recover if his case had been made out by satisfactory proof. But this is not prejudicial to the plaintiff. It does not do him any wrong; he has no right to complain. We do not sit here to correct formal errors made by the jury that do not hurt any one. The parties who are injured by this verdict are the defendants, not the plaintiff. But the defendants do not move for a new trial. The jury might have found a verdict generally for the defendants, but because the jury have given the plaintiff what he is not entitled to, it certainly does not lie in the The jury have found as a fact that we are en-mouth of the plaintiff to allege any wrong, nor Under these circumstances is it the duty of the Court to set aside the verdict. Motion refused. W. Henry Smith, for the motion. This verdict is clearly erroneous, in any aspect of the case. According to plaintiff's theory, he must recover either the six thousand dollars with interest, being the amount of the balance due him, or nothing. According to defendant's view he is entitled to nothing at all. Where damages are from the nature of the case wholly for the jury, inadequacy alone may not be ground for setting aside a verdict; but here the evidence on either side shows that it must have been arrived at improperly. [MCKENNAN, J. If a verdict for the defendants could have been sustained, are not the defendants the only parties to object to that, in this case?] titled to recover. we are entitled to recover the whole $6000, and it was an error to give us any less. George Biddle for defendants, was not called upon. Oral opinion by MCKENNAN, Cir. J. [Cf. Le Van v. Peuna. R. R. Co., 5 W. N. C. 293.] |